In re Fiona H.

Filed 4/12/07 In re Fiona H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William E. Lehnhardt, Judge. (Retired Judge of the Imperial Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Tomas H. appeals a judgment of the juvenile court terminating his parental rights to his minor daughter, Fiona H., under Welfare and Institutions Code section 366.26.^[1] Tomas contends: (1) the court erred by denying his section 388 petition for modification seeking to have Fiona returned to his care; and (2) the evidence was insufficient to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating his parental rights. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2004, 11-month-old Fiona became a dependent of the juvenile court under section 300, subdivision (b) and was removed from parental custody based on findings she was exposed to domestic violence between her parents, Tomas and Jacqueline H.^[2] The court placed Fiona with relatives and ordered Tomas to comply with his case plan, including domestic violence treatment, parenting classes, counseling and a psychological evaluation.

A psychological evaluation by Julio-Cesar Armenta, Ph.D., showed Tomas had mood and bipolar disorders requiring "intensive and extensive" individual psychotherapy and medication. Dr. Armenta noted Tomas's unmet needs, limited resources and emotional immaturity prevented him from giving priority to Fiona's needs and increased his risk of neglectful behavior.

Four months after Fiona was removed from her parents' custody, Tomas was arrested for another incident of domestic violence against Jacqueline and was convicted of inflicting corporal injury on her.

At the time of the six-month review hearing, Fiona was living with her maternal great aunt and great uncle. Tomas was having supervised visits twice a week for two hours. He had completed a parenting education program and recently enrolled in a 52-week domestic violence program, but had not begun individual therapy. The court ordered six more months of services for Tomas.

Although Jacqueline had a restraining order against Tomas and claimed she had had no contact with him, she gave birth to their second child, Julia, in July 2005. That same month, Tomas assaulted the paternal grandmother in the presence of Jacqueline, Fiona and Julia. Consequently, Tomas was discharged from his domestic violence program. Despite having received referrals for therapists, he was not enrolled in therapy, and was not receiving treatment for his bipolar disorder as recommended by Dr. Armenta. The court found the parents had not made substantive progress with their case plans, terminated their services and set a section 366.26 selection and implementation hearing.

In July 2006 Tomas filed a section 388 petition for modification, seeking to have the selection and implementation hearing vacated and Fiona placed with him. As changed circumstances, Tomas alleged he: (1) completed a 52-week domestic violence intervention program; (2) was employed full time; (3) planned to move into a one-bedroom apartment with his girlfriend; (4) was having unsupervised visits with Julia; (5) had been in therapy for six months; and (6) had increased his visits with Fiona. Tomas alleged the proposed modification was in Fiona's best interests because he was Fiona's biological father, had a beneficial relationship with her as a result of his regular visits, and would be able to provide a safe and stable home for her. Further, he was doing well with reunification services for Julia, and placing Fiona with him would ensure his daughters would maintain their sibling relationship.

Fiona's maternal great aunt and great uncle told the social worker that although Tomas had made improvements in his life, he still had a lot to learn about stress and anger management. They questioned his ability to care for Fiona and Julia without the support of extended family, and noted his dependence on family for housing and transportation.

Social worker Brooke Guild assessed Fiona as adoptable. Fiona's maternal great aunt and great uncle, with whom she had lived nearly half her life, wanted to adopt her. Fiona was emotionally bonded to them and enjoyed the sense of safety and security they offered. The caregivers' home study was almost certain to be approved, but if it were not, there were 40 other approved families willing to adopt a child with Fiona's characteristics.

Guild further reported Tomas was regularly visiting Fiona, who had become increasingly comfortable with him. He was appropriate during visits and attentive to Fiona's needs, although he had difficulty setting limits. Fiona was not overjoyed to see Tomas at the beginning of visits and she separated easily from him after visits. In Guild's opinion, Tomas had no beneficial parental relationship with Fiona. Guild believed Fiona remained at risk in Tomas's care, and placing Fiona with him would compromise her needs and interests.

Guild noted Tomas was involved in two additional incidents of domestic violence while participating in domestic violence treatment. Tomas took 18 months to complete the 52-week program, showing he was ambivalent toward meeting personal responsibilities and obligations. He portrayed himself as a "victim" rather than a "perpetrator" of domestic violence, causing Guild to question whether he had gained any insight or learned to empathize. Other risk factors were Tomas's denial that he had bipolar disorder and his failure to seek treatment, given his clinical diagnosis, suicide attempt and family psychiatric history.

At a hearing on Tomas's section 388 petition, Haim Belzer, Ph.D., testified Tomas regularly attended therapy with him and his participation was excellent. Dr. Belzer stated domestic violence was no longer an issue for Tomas. Tomas had bipolar disorder but currently had no symptoms. Although Tomas completed a parenting class, he needed to improve his parenting and coping skills. He could safely parent Fiona, but only with help from others. Dr. Belzer believed Tomas was not ready to have Fiona placed with him. Rather, reunification should be gradual.

Tomas testified he had successfully addressed his domestic violence issues. He was employed, visiting Fiona often and had begun making child care arrangements for her. Tomas denied having bipolar disorder, claiming he had no symptoms other than mild depression.

After considering the evidence and hearing argument of counsel, the court denied Tomas's modification petition. The court found Fiona was adoptable and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights.

DISCUSSION

I

Tomas contends the court erred by denying his section 388 modification petition. He asserts his circumstances had changed because domestic violence was no longer a problem for him. He further asserts it was in Fiona's best interests to be returned to his care because he had succeeded in "changing himself into a fine father."

A

Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal. 4th at pp. 318-319; In re Casey D. (1999) 70 Cal.App.4th 38, 47; In re Zachary G. (1999) 77 Cal.App.4th 799, 812.)

B

The evidence showed Tomas's circumstances had changed in some respects, but were only changing in other respects.^[3] Although Tomas completed a 52-week domestic violence treatment program, he took 18 months to do so, showing he was ambivalent toward meeting personal responsibilities and obligations. While participating in the program, Tomas was violating a restraining order and was involved in two additional incidents of domestic violence. Although there had been no incidents of domestic violence for eight months, Tomas denied or minimized his role in past incidents and viewed himself as a "victim" rather than a "perpetrator" of domestic violence, suggesting he may not have gained insight or learned empathy. Moreover, there were ongoing concerns about Tomas's anger management, his need to improve his parenting and coping skills, and his ability to safely parent Fiona without help from others. Tomas failed to obtain treatment for his bipolar disorder, claiming he had no symptoms. He did not progress beyond supervised visits with Fiona. Even Dr. Belzer, who believed Tomas had made significant progress in addressing his problems, could not support Tomas's request to have Fiona placed with him.

Although Tomas was now employed full time, in the process of moving to a one-bedroom apartment with his girlfriend, participating in therapy and visiting Fiona more frequently, these were changing, rather than changed, circumstances when viewed in the context of Tomas's attempt to develop a healthier and more productive lifestyle. A petition that alleges changing circumstances does not promote stability for the child or the child's best interests because it would mean delaying the selection of a permanent home to see if a parent, who has failed to reunify with the child, might be able to reunify at some future point. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th at 295, 310.)

Even had Tomas shown changed circumstances, he did not meet his burden of showing the proposed modification placing Fiona with him was in Fiona's best interests. The evidence showed Fiona had a much stronger attachment to her caregivers than to Tomas. Tomas continued to place his own interests before those of Fiona, and he was not ready to parent her. Placing Fiona with Tomas would compromise her needs and interests.

At the time of the hearing on Tomas's modification petition, the focus of the proceedings had shifted from family preservation to providing Fiona with a safe, stable and permanent home. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Fiona would benefit from a permanent placement with parents who could meet her needs, and any delay in obtaining an adoptive home for her was not in her best interests. The court acted well within its discretion by denying Tomas's modification petition.

II

Tomas challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating his parental rights. He asserts he regularly visited Fiona, who would benefit from continuing the parent-child relationship with him.

A

We review the finding section 366.26, subdivision (c)(1)(A) was inapplicable for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we must uphold those findings. We do not evaluate the credibility of witnesses, attempt to resolve conflicts in the evidence or determine the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, consider the record favorably to the juvenile court's order and affirm the order even if other evidence supports a contrary finding. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) Where, as here, the court finds a child cannot be returned to his or her parent and is likely to be adopted, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of five specified exceptions. ( 366. 26, subd. (c)(1)(A)-( E); In re Erik P. (2002) 104 Cal.App.4th 395, 401.) One such exception applies when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." ( 366.26, subd. (c)(1)(A).) We have interpreted the phrase "benefit from continuing the relationship" to refer to a "parent-child" relationship that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent[-]child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . .  The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

Although Tomas regularly visited Fiona, he did not show there was a beneficial parent-child relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(A). Fiona was comfortable during supervised visits with Tomas and he was attentive to her needs. However, Fiona was neither overjoyed to see Tomas nor sad when visits ended. Instead, she was strongly bonded to her caregivers, who were committed to adopting her. In the social worker's opinion, Tomas and Fiona did not have a beneficial parent-child relationship. There was no showing Fiona would be "greatly harmed" if she no longer had contact with Tomas. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Further, Tomas did not show maintaining his relationship with Fiona outweighed the benefits of adoption. Although Tomas would prefer a permanent plan for Fiona other than adoption, the Legislature has decreed that a permanent plan other than adoption "is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) Fiona, whose needs could not be met by Tomas, deserves to have her custody status promptly resolved and her placement made permanent and secure. Substantial evidence supports the court's finding the beneficial parent-child relationship exception did not apply to preclude terminating Tomas's parental rights.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

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^[1] Statutory references are to the Welfare and Institutions Code.

^[2] Jacqueline is not a party to this appeal.

^[3] The court implicitly found Tomas's circumstances were changing but had not changed when it noted Tomas belatedly began reunification efforts and had "only progressed so far."